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Precis: Equity is largely assumed to be the province of courts, where it is framed primarily as the domain of judges: should the court continue to apply a general law when its application results in unforeseen or unfortunate consequences. But equity operates outside the courts also, upon statutes and rules. In fact, the lion’s share of equitable work has been done outside the courts for much of this Nation’s history. By contrast to equity within courts, equity outside the courts is a dynamic and discursive practice—not simply a process—that members of the public engage in as they lobby or petition for exceptions or amendments to a previously proposed or passed general law. Yet equity outside the courts remains largely unexplored despite raising recurring issues and producing muddled doctrine. To better theorize the practice of equity outside the courts this article offers two historical case studies. To date, researchers have largely studied “petitioning” and the “private bill system” as distinct phenomena. Consequently, literatures celebrating the practice of petitioning at the national and local levels as empowering individuals and minorities and literatures decrying petitioning at the state level as corruptive to the Rule of Law have not yet been brought into conversation. This Article bridges these historiographies and fashions them into case studies on the petition process—the primary means by which individuals practiced equity in the United States over the long nineteenth century.
Maggie (McKinley) Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) researches and teaches in the fields of constitutional law, federal Indian law, and legislation. Her recent projects examine the ways that American democracy can and should empower minorities, especially outside of traditional rights and courts-based frameworks. She is particularly interested in those formal legal institutions that empower minorities to govern and engage in lawmaking—petitioning, lobbying, distributed sovereignty, &c.—and how those institutions might be harnessed to better mitigate constitutional failures, like colonialism and slavery. Her research has been published or is forthcoming in the Harvard Law Review, Stanford Law Review, Yale Law Journal, and Cambridge University Press. Her empirical projects have been supported by the American Political Science Association, the Edmond J. Safra Center for Ethics, among others.
Along with Laura Edwards (Duke, History) and Naomi Lamoreaux (Yale, History & Economics), she is leading a multi-year project for the Tobin Project’s Institutions of Democracy Initiative on Rethinking the History of American Democracy. She also serves as President of the AALS section on Legislation and Law of the Political Process and as Senior Constitutional Advisor to the President of the Minnesota Chippewa Tribe.